Updates and Commentary

As 2017 draws to a close, let us look back at the Trump Administration’s push to fill judicial vacancies, and compare the numbers from his first year to those of the past few presidents (all numbers are drawn from the Federal Judicial Center).

Nominations

In the first year of his presidency, Trump submitted 69 nominees to Article III courts, more than any other modern president. Compare the following:

Nominations sent to the Senate in 1st Year of Presidency

As seen from the table above, Trump has submitted more district court nominees in the first year of his presidency than any of the last five presidents. He also submitted more court of appeals nominees than any president other than George W. Bush. While this is partially a function of a higher number of vacancies that Trump inherited at the beginning of his term, it is nonetheless a testament to the focus on judges by White House Counsel Don McGahn and his team.

Confirmations

In 2017, the Senate confirmed 19 of Trump’s nominees: Supreme Court Justice Neil Gorsuch; 12 judges to the U.S. Court of Appeals, and 6 to the U.S. District Courts.

Nominees Confirmed in 1st Year of Presidency

As seen from the chart, while Trump has had more appellate nominees confirmed than the other modern presidents, he has also had the fewest district court nominees confirmed. This is largely the result of Senate Majority Leader Mitch McConnell’s prioritizing of appellate nominees when calling a vote. In general, McConnell has largely ignored district court nominees, focusing on quick votes on the appellate picks.

This prioritization means that, as a whole, Trump has seen a smaller percentage of his judicial nominees confirmed than any of the last five presidents.

Percentage of Nominees Confirmed in 1st Year of Presidency

Withdrawals

Of the 69 nominees sent to the senate this year, three have already been (informally) withdrawn by the Administration: Jeff Mateer; Matthew Petersen; and Brett Talley. This is unusual for two reasons: first, as of this point in their presidencies, none of the past five presidents had withdrawn a single nominee; and second, in general, this represents a higher percentage of “nominee failure” than previous presidents.

In comparison, out of all the nominations made in their first year, Presidents Reagan, and George H.W. Bush saw every single nominee confirmed. Presidents Clinton and Obama each submitted one nomination in their first year that was ultimately not confirmed: Theodore Klein to the U.S. District Court for the Southern District of Florida; and Louis Butler to the U.S. District Court for the Western District of Wisconsin. While President George W. Bush had to eventually withdraw four of his first year nominees: Terrence Boyle; Miguel Estrada; Charles Pickering; and Henry Saad, all of these nominees were blocked either through home-state opposition, or through the filibuster. As such, the defeat of three nominees in a post-filibuster universe is particularly notable.

Diversity

I wroteearlier in the year that the Trump’s administration’s nominees have been relatively less diverse than those of previous presidents. At the time of that post, Trump had nominated 36 federal judges. Looking at all 69 of his appointments, it is important to re-evaluate the picture:

Trump has nominated four women to the courts of appeals, and twelve women to the district courts. As such, 23% of Trump’s judicial nominees are women. In comparison, 38% of Obama’s judicial nominees from his first year were women, as were 25% of George W. Bush’s, 37.5% of Clinton’s, 17% of George H.W. Bush’s, & 5% of Reagan’s.

Trump has nominated one African American nominee: Judge Terry Moorer, one Hispanic nominee: Fernando Rodriguez; and four Asian American nominees: Judge Amul Thapar; Judge James Ho; Karen Gren Scholer; and Jill Otake. As such, 9% of Trump’s judicial nominees are lawyers of color.

Age

While Trump nominees have drawn some criticism for their youth and inexperience, overall, their ages are not significantly different than those of prior appointees.

Trump’s appellate nominees so far have an average age of 49.5, while his district court nominees have an average age of 52.5. As noted earlier, this is comparable to the ages of Bush, Clinton, and Obama nominees.

Overall Assessment

Reviewing his first year in office, manyobserversagree that judicial appointments constituted an area of success for President Trump. Looking at the empirical evidence, it is clear the Trump Administration has moved quickly on nominations, submitting more judges to the senate than any other recent president. However, when it comes to confirmations, they still lag behind other recent presidents.

Furthermore, the data suggests that declarations of a “flood” of young conservatives reaching the bench are hyperbole. As noted above, on average, Trump’s nominees are comparable in age to those of other recent presidents. Furthermore, McConnell’s focus on appellate confirmations has caused district confirmations to lag. As such, the district courts, where a significant portion of American caselaw is decided, remain, as of yet, untouched by Trump.

For those few who haven’t heard, Senate Judiciary Committee Chairman Chuck Grassley announced yesterday that, contrary to previousstatements, he is moving forward with hearings on two appellate judges who did not have positive blue slips from both home state senators: Justice David Stras for the Eighth Circuit; and Stuart Kyle Duncan to the Fifth Circuit (whom Republican home-state senator John Kennedy has not yet committed to supporting).

Let’s set aside the merits of Grassley’s new “case-by-case” blue slip policy. You can make arguments on either side.

Let’s also side Grassley’s hypocrisy in setting aside a policy he strictly abided by when it hurt a Democratic President, blocking numerous well-qualified appellate nominees, including:

Former Indiana Supreme Court Justice Myra Selby

U.S. District Court Judge Abdul Kallon

Appellate Head at the U.S. Attorney’s Office for the Western District of Pennsylvania Rebecca Ross Haywood

Kentucky Supreme Court Justice Lisabeth Hughes

Let’s instead focus on what I keep asking myself about Grassley’s announcement:

What was the Need?

I have yet to find the masses of Trump appellate nominees being blocked by blue slips. Out of the eighteen appellate nominees put forward by the Trump Administration, only three have not had both blue slips returned: Stras, Michael Brennan for the Seventh Circuit; and Ryan Bounds to the Ninth Circuit. In fact, of the eleven Democratic senators with an opportunity to return blue slips on appellate nominees, seven have done so. As Grassley’s staff itself stated a month ago, there is no issue with Democratic senators not returning their blue slips. So, why the urgency?

Now, it may be possible that many prospective Trump nominees are being blocked pre-nomination by the intransigency of home-state senators. But, in his statement justifying his actions, Grassley made no mention of this. Instead, his focus was on the nominations already made, a measure by which Trump is already doing far better than his predecessors.

I hypothesize that Grassley’s announcement has less to do with the level of obstruction and more to do with the current political climate. With the GOP’s poor performance in the 2017 elections, and the recent revelations affecting the Alabama special election, Senate Republicans are suddenly facing the possibility that they may be in the minority after the 2018 elections. Facing a shorter window to confirm judges, Grassley may have felt the pressure to move as many as possible.

At any rate, Grassley’s move, whether principled or politically motivated, was strategically misguided, as I will discuss in the companion piece to this post.

This morning, the Weekly Standard released an interview with Senate Majority Leader Mitch McConnell, focusing on judicial nominations. Among various pronouncements, McConnell declared in the interview that blue slips “won’t be honored at all.” Various pundits seized upon this, declaring “a serious escalation in the judicial wars” and that the confirmation process has been eased for “Trump’s most ideological judges.” Despite the declaration from McConnell, there are two reasons to believe that reports of the blue slip’s death have been greatly exaggerated.

First, consider the source of the statement. As much as he may wish it so, Mitch McConnell does not control blue slips (if the majority leader had such control, it is likely that then-Majority Leader Harry Reid would have killed blue slips in the Obama Administration). Rather, the blue slip in the Judiciary Committee tradition, and as such, its future rests in the control of the Committee leadership. So far, Chairman Chuck Grassley has offered no comment on McConnell’s statement, suggested either: Grassley’s not on board; or Grassley is supportive but was not consulted before McConnell’s interview. Either way, it doesn’t look like McConnell’s remarks are part of a coordinated assault on the blue slip.

Second, none of the relevant parties in question: the White House; the Judiciary Committee; or Senate Democrats, are acting like blue slips are on their deathbed. The White House has studiously avoided nominating judges in states with Democratic Senators. The Judiciary Committee has held off on hearings from any nominee that does not have two positive blue slips (it avoided a golden opportunity to challenge blue slips by holding a hearing on Justice David Stras next week, instead going with Greg Katsas who has no blue slip issues). Senate Democrats have not yet reacted to McConnell’s statements (as would be imminent if blue slips were truly gone).

So, if blue slips are not dead, why would McConnell declare it so. I can think of three reasons: first, to persuade restive conservative groups that Republicans are serious about judicial nominations; second, to pressure recalcitrant Democrats into returning blue slips; and third, to prepare the groundwork for a future assault on the blue slip. As such, it is better to think of McConnell’s comments as the first salvo in the battle, rather than a declaration of the outcome.

One final comment: if McConnell and Grassley do choose to axe blue slips, it will be one of their most strategically foolish decisions. As much as the Judicial Crisis Network may pretend otherwise, the blue slip is one of the greatest gifts that Republicans have. This is because, over the last four Administrations, it is Republicans who have successfully wielded blue slips. For example, in the Obama Administration, seven appellate nominees were partially or successfully held up through blue slips, compared to just five in the Bush Administration. Out of the vacancies left at the end of the Obama Administration, a whopping 33 can be tied partially or directly to blue slips. In comparison, just 12 vacancies at the end of the Bush Administration can be tied to blue slips. So far, the Trump Administration has 50 judicial nominees pending before the Senate. Out of those, exactly three face blue slips issues (and in each of those cases, Democratic senators are willing to substitute equally conservative nominees that they have agreed upon). So, as such, why change the rules of a game you’re winning? If McConnell does end up axing blue slips, he’ll have gained virtually nothing (other than more cloture votes, fewer time agreements, and a longer, more exhaustive calendar) and will have lost his best tool for keeping liberal judges off the bench.

Today, the White House announced nine new judicial nominations (seven to lifetime appointments). The new nominees are:

Barry Ashe, a New Orleans based civil litigator, has been nominated to the U.S. District Court for the Eastern District of Louisiana.

Daniel Domenico, the former Solicitor General of Colorado, has been nominated to the U.S. District Court for the District of Colorado.

Stuart Kyle Duncan, an appellate attorney and former counsel for the Becket Fund for Religious Liberty, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

Judge Kurt Engelhardt, a federal district judge appointed by President George W. Bush, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

James Ho, a partner in the Dallas Office of Gibson Dunn, and the former Solicitor General of Texas, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

Ryan T Holte, a professor at the University of Akron School of Law, has been nominated to the U.S. Court of Federal Claims.

Gregory E. Maggs, the Arthur Selwyn Miller Research Professor of Law at the George Washington University Law School, has been nominated to the U.S. Court of Appeals for the Armed Forces. (Full disclosure, Maggs taught me in law school, wrote several of my clerkship recommendations, and remains a mentor.)

Howard Nielson, a former Deputy Assistant Attorney General in the Department of Justice, has been nominated to the U.S. District Court for the District of Utah.

Justice Don Willett, currently serving on the Texas Supreme Court, has been nominated to the U.S. Court of Appeals for the Fifth Circuit.

Today, President Donald Trump announced the nominations of three circuit court nominees and thirteen district court nominees. The nominees are as follows:

Judge R. Stan Baker – a federal magistrate judge on the U.S. District Court for the Southern District of Georgia, Baker has been tapped to fill a vacancy on the same district.

Jeffrey Uhlman Beaverstock – a partner in a Mobile law firm, Beaverstock has been nominated to fill a vacancy on the U.S. District Court for the Southern District of Alabama.

Ryan Wesley Bounds – a federal prosecutor and former clerk to conservative Judge Diarmund O’Scannlain, Bounds has been nominated to fill O’Scannlain’s Oregon seat on the U.S. Court of Appeals for the Ninth Circuit.

Judge Elizabeth Branch – a judge on the Georgia Court of Appeals, Branch has been nominated to fill the Georgia seat vacated by Judge Frank Hull on the U.S. Court of Appeals for the Eleventh Circuit.

John W. Broomes – a partner in an Overland Park based law firm, Broomes has been tapped for a vacancy on the U.S. District Court for the District of Kansas.

Judge Walter David Counts III – a federal magistrate, Counts has been nominated to a fill a vacancy on the U.S. District Court for the Western District of Texas. He had been nominated to the same court by President Obama but was not confirmed.

Rebecca Grady Jennings – a Louisville law firm partner, Jennings has been tapped for a vacancy on the U.S. District Court for the Western District of Kentucky.

Matthew Kacsmaryk – Deputy General Counsel to the First Liberty Institute, Kacsmaryk has been nominated for the U.S. District Court for the Northern District of Texas.

Gregory Katsas – a Deputy White House Counsel and former clerk to Justice Clarence Thomas, Katsas has been nominated to fill a vacancy left by Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit.

Emily Coody Marks – a Montgomery law firm partner, Marks has been nominated to the U.S. District Court for the Middle District of Alabama.

Jeff Mateer – the first Assistant Attorney General of Texas, Mateer has been nominated for the U.S. District Court for the Eastern District of Texas.

Judge Terry F. Moorer – a federal magistrate judge, Moorer’s nomination was announced for the U.S. District Court for the Middle District of Alabama in May (but never submitted). Moorer has instead been nominated for the U.S. District Court for the Southern District of Alabama.

Matthew Petersen – a Commissioner on the Federal Election Commission, Petersen has been nominated for the U.S. District Court for the District of Columbia.

Fernando Rodriguez – field office director in the Dominican Republic for International Justice Mission, Rodriguez has been nominated for the U.S. District Court for the Southern District of Texas.

Karen Gren Scholer – a principal at a Dallas law firm, Scholer has been nominated to fill a vacancy on the U.S. District Court for the Northern District of Texas. She had previously been nominated to fill a vacancy on the U.S. District Court for the Eastern District of Texas by President Obama.

Brett Talley – a Deputy Assistant Attorney General in the Office of Legal Policy at the Department of Justice, Talley has been nominated to fill a vacancy on the U.S. District Court for the Middle District of Alabama.

Today, the Senate Judiciary Committee held a hearing on two circuit court nominees, two district court nominees, and one executive nominee. Here are my preliminary thoughts on the proceedings, which can be watched here. (I’ll focus on the first panel, as Parker and Campbell skated through and will be confirmed easily).

DISCLAIMER: These are just my opinions. Reasonable observers of the hearing can obviously disagree on any of these points.

Two Circuit Court Nominees Will Not be The Norm – Chairman Chuck Grassley (R-IA) started the day by recognizing that the hearing will be the second with multiple circuit court nominees, a fact that had drawnliberalcriticism. Grassley’s statement acknowledged that the hearing was “unusual” and suggested that he would go back to having only one circuit court nominee per hearing.

Joan Larsen Will Be Confirmed – Republicans really want Justice Larsen on the circuit court bench; running ads to influence home state senators, threatening to ignore blue slips, and double-booking her with another controversial nominee. Over the course of the hearing, it was clear why. Larsen was poised and comfortably conversed with senators on several legal issues. She assured Democrats that she would be willing to rule against Trump, and emphasized the importance of judicial independence. She also blunted another line of criticism by confirming that she had no role in the controversial “torture memos” which came from the Office of Legal Counsel (OLC) during her tenure there. As I’ve noted before, the strongest argument against Larsen is a procedural one based on lack of consultation. Now that the blue slips are in, it’s a question of when, rather than if, Larsen will be confirmed.

Amy Barrett Will Be Strongly Opposed – As Sen. Dianne Feinstein (D-CA) noted early in the hearing, Barrett is “controversial.” Her writings on Catholic judges and the death penalty and stare decisis have drawn criticism. For much of the hearing, Barrett carefully navigated her old writings, assuring the Committee that she would follow precedent and that judges could not let their religious views supersede the law. However, much of the posturing was undone by two key missteps. First, under questioning from Sen. Mazie Hirono (D-HI), Barrett declared that, had she been nominated as a trial judge, rather than as an appellate judge, her Catholic faith would compel her not to enter orders of execution. Sen. Hirono balked at the answer, but did not ask the obvious follow-up: why does Barrett feel compelled to recuse herself from entering orders of execution as a trial judge, but not from affirming such orders as an appellate judge? Second (and much more damaging from a PR perspective), in an exchange with Sen. Al Franken (D-MN), Barrett acknowledged that she had accepted $4200 from the controversial anti-LGBTQ group Alliance Defending Freedom (ADF). When Franken pointed out that ADF held many extreme views, including supporting the sterilization of transgender persons, and had been designated as a hate group by the Southern Poverty Law Center (SPLC), Barrett inexplicably tried to defend ADF. She argued that as ADF had filed as co-counsel at the Supreme Court with Wilmer Hale and that, as she herself had experienced no discrimination while interacting with them, they could not be a hate group. It was an unnecessarily defensive performance and undermined her careful answers until that point.

Franken Remains the Minority’s Best Questioner – In the last “big” hearing, Franken helped lead the Democrat’s charge against John Bush and Damien Schiff. This time, he shone in his exchange with Barrett, honing in on inconsistencies in her answers, pressing for follow ups, and stepping back when needed. Despite not having a law degree, Franken’s performance was one any trial attorney would be proud of.

Sen. Kennedy Remains the Majority’s Toughest Questioner – During the Bush-Newsom-Schiff hearing, Sen. John Kennedy (R-LA) hammered the latter for his inflammatory blog posts and refused to question Bush at all. This time, Kennedy started off his questioning by noting that some Republicans had suggested he “go easy” on the Trump nominees. He declined to do so, pushing Barrett and Larsen to engage with him on legal philosophy, and criticizing them when they refused to do so. Sen. Mike Lee (R-UT) was forced to come to their defense, noting that the nominees were ethically barred from answering some of Kennedy’s questions. Nevertheless, an unchastened Kennedy maintained the same tempo of questioning in his second round. At any rate, while Kennedy will likely support both Barrett and Larsen, his desire to engage in real legal debate is refreshing and makes him a welcome presence on the committee.

Last week, we discussed the low percentage of women among Trump’s judicial nominees. This week, we address an equally concerning phenomenon: the low percentage of racial minorities. President Trump’s first few batches of judicial nominees have the lowest proportion of “nonwhite” judges since the Kennedy Administration. This portends a dramatic drop in the percentage of minority judges in the federal judiciary.

According to the Congressional Research Service (CRS), as of August 1, President Trump has nominated only one non-white judge to the federal bench: Judge Amul Thapar. (The nominees submitted on August 3d were not analyzed but are also overwhelmingly white). This means that under 4% of Trump’s nominees have been racial minorities. In comparison, 36% of President Obama’s judicial nominees were racial minorities.

Traditionally, Democratic presidents have been more sensitive to racial diversity in federal judicial appointments. Presidents Carter, Clinton, and Obama all emphasized diversity when selecting federal judges, and racial minorities achieved key milestones in the federal judiciary during their presidencies. Nevertheless, Republican presidents in the modern era, including Presidents Reagan, George H.W. Bush, and George W. Bush, all produced a group of judicial nominees more diverse than those of President Trump. In fact, even Presidents Nixon and Ford had a slightly higher percentage of nonwhite nominees than President Trump.

According to CRS, minority judges are seeing the first sustained decline of their numbers from the peak they reached in early 2015. Much of the decline is due to the Republican Senate’s refusal to confirm President Obama’s judicial nominees in the 114th Congress, and cannot be blamed on President Trump. Nevertheless, unless this Administration makes an affirmative commitment to racial diversity, they will oversee a federal bench with far fewer minority judges.

It is still early and the Trump Administration can rectify this problem. They can demonstrate a commitment to judicial diversity by identifying and nominating qualified minority candidates to the federal bench. Such an effort does not have to be at the expense of ideology, as many judicial conservatives on the federal bench are of minority background, include Judges Janice Rogers Brown and Jerome Holmes. The Administration can identify similar candidates, such as Arizona Supreme Court Justice John Lopez and U.S. District Court Judges Diane Humetawa and Marco Hernandez, and elevate them to the federal court of appeals.

With the end of the August recess, a new wave of nominees is expected next week. The new nominations will either confirm the trend noted above, or mitigate it.

P.S. Special Thanks to Glenn Sugameli of Judging the Environment for linking me to the CRS data on diversity in judicial nominations.